Fuddruckers Loses Health Defense in 'Drooling Cook' Disability Case

A former cook at a Fuddruckers restaurant can go forward with a lawsuit alleging she was fired because of her disability — stuttering — and not because her "excessive salivation" posed a public health threat, as the company contended, a federal judge in Minnesota has ruled.

Fuddruckers Inc. says it fired plaintiff Barbara Andresen because she drooled on food that was served to customers and therefore posed a "direct threat" to the health and safety of others. However, U.S. District Judge Donovan W. Frank said the company waived that argument by not including it as an affirmative defense in its answer to Andresen's complaint.

The case highlights the problems employers in the food-service industry confront when their obligations under the Americans with Disabilities Act conflict with laws designed to protect the public from food-borne illnesses.

Fuddruckers is a full-service restaurant chain with headquarters in Beverly, Mass., and Austin, Texas, that bills itself as the home of the "world's greatest hamburgers." The first Fuddruckers opened 25 years ago in San Antonio, according to the company's Web site.

Andresen worked at a Fuddruckers in St. Louis Park, Minn., for nearly 16 years until she was fired in August 2002, according to court records. During that time, she held a variety of positions, including preparatory cook, baker and bartender.

Andresen sued the chain two years ago, alleging her termination violated the federal Americans with Disabilities Act and the Minnesota Human Rights Act. She was working as a prep cook at the time, according to court records.

Fuddruckers moved for summary judgment, in effect asking Judge Frank to dismiss the case for lack of material facts without a full trial. The restaurant presented several arguments, including that Andresen's stuttering was not considered a disability under the ADA, that she was not qualified for her job and that her "excessive salivation" posed a health threat to others.

Fuddruckers said Andresen has held a variety of jobs over the years, both in the restaurant industry and outside of it, and has been able to communicate sufficiently to get along in daily life.

But Judge Frank said Andresen had provided enough evidence to support a trial on whether or not her stuttering was severe enough to qualify as a disability. He pointed to record evidence indicating Andresen has a great deal of trouble speaking and that she avoids situations in which she needs to speak with strangers.

Next, the judge rejected Fuddruckers' argument that Andresen was not qualified for her job, noting that there was no record of problems with her job performance over nearly 16 years until new management took over in fall 2001.

Finally, Judge Frank said, Andresen presented evidence that she was fired because of her disability and not because of Fuddruckers' asserted public-health reason. In early 2002, after the new management was in place, Andresen overheard one manager telling another that he was going to "find a way to get rid of Barb," she says.

Judge Frank also said Andresen presented evidence that the new management did not want her to interact with customers because of her speech problem.

Fuddruckers argued that the new management was brought in because the public perceived the St. Louis Park restaurant to be unsanitary. While the new managers were working to improve the restaurant's sanitary conditions, they reportedly received three complaints from customers about Andresen's "excessive salivation," and co-workers allegedly saw Andresen drooling and spitting into food, according to Fuddruckers.

The ADA allows an employer to fire an otherwise-protected worker if he or she poses a "direct threat" to the health or safety of other people. However, Judge Frank said, Fuddruckers had waived this argument by failing to include it as an affirmative defense in its answer to Andresen's complaint.

But even if the "direct threat" argument had not been waived, the judge said, there were too many disputed material facts to grant summary judgment in favor of Fuddruckers on that basis. Andresen's termination notice indicates she was fired for failing to properly prepare lettuce for salads, and it makes no mention of drooling or spitting, he said.